SADOW: Consent Decree On Supreme Court Districts Up At 5th Circuit

Next week the U.S. Fifth Circuit Court of Appeals will hear a Louisiana case that could have vast ramifications for how elective judicial districts are drawn, with potentially some unintended consequences for those seeking to change the system in a way that would boost Democrats’ presence on the Louisiana Supreme Court.

Chisom v. State of Louisiana fights the state’s effort to end the consent decree that forces the state to maintain a majority-minority state Supreme Court district. A district court ruled against this last year, maintaining that the state, represented by Republican Atty. Gen. Jeff Landry, didn’t show that the problem of voter discrimination had been solved completely without the decree in effect and the situation – presence of the district creating significant malapportionment – hadn’t changed significantly to jettisoning the decree. (Democrat Gov. John Bel Edwards by virtue of his position was party to the request, but he failed to participate in its defense.)

Landry had argued that three decades of having a black jurist serving in that district proved the problem of discrimination solved, in that a change from the previous geographically larger district that elected two members at-large in a majority-majority district with a large number of racial minority residents to splitting it essentially into two single-member districts, as the other five across the state were, had done the trick. Further, he argued the present arrangement sustained severe malapportionment, with a deviation spanning over 50 percent, that dissolving the decree could reduce substantially. But Democrat Pres. Barack Obama-appointed Louisiana Eastern District Judge Susie Morgan found the reason wanting, despite the fact that the SMD district as opposed to its MMD predecessor made it extraordinarily difficult not to have a M/M district, especially with districts not malapportioned.

In fact, the state through legislative attempts had gone to extraordinary measures to try to lock in a SMD system that would produce not just one but two M/M districts. In 2021 and 2022 constitutional amendments had been offered to enshrine precisely that by expanding the Court from seven to nine SMD that necessarily would reduce substantially malapportionment in the subsequent mapping. In 2021, the Senate unanimously passed it but the House failed a parliamentary hurdle to consider it because every single black representative present voted against that (absences also count for negative votes). In 2022, the House never brought it up with it caught up with other reapportionment matters and unable to secure the two-thirds margin necessary, but when it came with that margin from the Senate all black senators had voted against it. Thus, Morgan inexplicably counted this against the state even though, in essence, black Democrats kept sabotaging legislation that could moot the decree and increase their Court representation.

Perhaps they did so because they wanted to roll the dice on another court case in the Middle District that claimed an unconstitutional gerrymander of Supreme Court districts, arguing a second M/M district could be drawn in the Baton Rouge area. Having that happen but under a nine-member court as the amendments would have produced would moot the demand for two of seven instead, which Democrats would see as more politically advantageous.

Not that under current jurisprudence this suit has any real chance. While the original Chisom v. Roemer decision paving the way for the consent decree declared that districts had to be drawn in ways without a racially-discriminatory impact, it schizophrenically exempted these from equal protection considerations (meaning malapportionment wasn’t a justiciable issue but could be remedied voluntarily by a state). So, unless that changes, the present Court map that contains districts that are reasonably compact and contiguous stands up to constitutional muster.

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So, by keeping the decree intact Democrats lock in one M/M district and can fight through judicial fiat to pry another from the other six districts. Without the decree, if the Constitution becomes amended to go to nine districts allowing for two M/M, the decree no longer stands in the way of implementing that while reducing malapportionment. Thus, they and their interest group allies fight the dissolution.

The irony, of course, is that if they were to prevail in the other suit – which a Fifth Circuit panel already has ruled is independent of the decree – likely it would come because the U.S. Supreme Court would have to do a complete turnaround on the equal protection question, blowing up the decree as part of that because it causes severe malapportionment. But the greatest potential irony of all is that the Court, rather than resolve its inconsistency of declaring judicial elections should have the qualities of those for representative institutions yet without the key pillar of equal protection by sucking in the latter, will dump the former.

In the last few years the Court has shown much more fidelity to following the letter of the Constitution and statute and willingness to abandon past precedents that failed to do that. Particularly the dissent in Roemer by Assoc. Justice Antonin Scalia showed a grave infirmity within the majority opinion, noting how the decision appeared to come in a manner to reach an ideological setpoint rather than rely on statute. It’s entirely possible that if the Middle District suit winds up at the Supreme Court, it not only will go against the plaintiffs but also provide the Court a chance to torpedo the very construct propping up the consent decree.

Regardless of what the Fifth Circuit decides, and even if the Supreme Court has the chance and does dynamite the notion that judicial elections, despite judiciaries not being institutions designed to make policy but to adjudicate, where states have them must share some characteristics with elections to representative institutions, Louisiana is going to have one of seven, if not two of nine, M/M Supreme Court districts. Any caterwauling by special interests opposing the end of the decree alleging this action would destroy the M/M district contradicts reality and occurs only to help them advance their political agendas.

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